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Margaret Craig obtained a decreet before the Commissaries of Edinburgh against Oliver Sinclair, decerning him to solemnize the bond of marriage with her. Thereafter, Oliver gives her a bond whereby he obliged himself to complete the marriage with her betwixt and a certain day, and in case of failzie to pay to her 300 merks. She registrates this bond, and the day being past, raiseth letters of arrestment, and arrests certain sums owing by the Lady Lothian to the said Oliver, and conveneth her and him for his interest for making the same forthcoming. Alleged, No process at the pursuer's instance, because she is cloathed with a husband, (viz. the said Oliver who is decerned to marry her) and so she could not pursue her own husband. 2do, No process for the failzie before it be declared. 3tio, No process for the sum acclaimed, it being a penalty for not completing the marriage, to which a man could not bind himself by law, quia matrimonia debent esse libera. Answered, 1mo, Albeit the Commissaries have decerned Oliver to marry the pursuer, yet so long as the same is not accomplished, it is but in færi, and he is not her husband. 2do, No necessity of a declarator, because there being a special day set down in the bond, dies interpellat, and the day being past she may pursue for the penalty. 3tio, Matrimonia sunt libera quidem liberis, but Oliver has not that benefit by reason of the decreet, whereby he is decerned to marry her. The Lords repelled the whole three allegeances.
Fol. Dic. v. 2. p. 53. Spottiswood, (Marriage.) p. 203.*** Durie reports this case:
One Margaret Craig having obtained a decreet before the Commissaries of Edinburgh against Oliver Sinclair, decerning him to take her to his lawful wife, and to complete the bond of marriage with her, before the face of holy kirk; after which sentence he gives bond to her, to solemnize the said marriage betwixt and a certain day, and in case of failzie, to pay to her 500 merks; which bond being registered, she thereupon arrested certain monies owing by Lady Lothian to him, and thereupon pursues to make the same forthcoming; which action was sustained for payment of the sum adjected in the bond, for a penalty, after the expiring of the day prescribed by the bond, and to make the sums arrested forthcoming therefor; notwithstanding, that it was alleged, that it was evident by the decreets and writs produced, that the said Oliver was the pursuer's husband, and so she cannot have action against her own husband. And next, it was alleged, that no declarator was obtained upon the failzie. 3dly, It was alleged, that pains adjected for fulfilling marriage are not allowed in law, quia matrimonia debent esse libera; which allegeances were all repelled, and the action sustained at the woman's instance without declarator, seeing it was not subsumed that they were married; and the action was allowed and sustained for payment of the sum adjected in case of failzie, because whenever he should complete the marriage, the sum would return to himself.
Act. Craig.Alt. Belshes.Clerk, Gibson.
Durie, p. 409.
